• FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education
  • FAIR – supporting auto accident victims through advocacy and education

Latest News Articles

May 6, 2020

LEGAL TALK WITH KRIS BONN MAY 4 2020
All talk about auto insurance, thresholds, limitations, court costs, fraud and why #Ontario car crash survivors have such a hard time collecting those benefits they paid for! ‘LEGAL TALK WITH KRIS BONN MAY 4 2020’ with FAIR’s Chair, Rhona DesRoches
 
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It’s Time for the Ontario Government to Mandate Auto Insurance Premium Reductions

We are living in a difficult time; people are getting sick and dying and the economy is in chaos. Recent PBO projections show a forecast of a federal deficit of nearly $250 billion dollars. Millions of Canadians are out of work and many small and medium sized businesses will not survive the current crisis. 
 
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Ep. 34 – The pandemic’s deadly ripple effect

Modelling from health officials indicate that approximately 35 people in Ontario have died because their surgeries were postponed due to COVID-19. Hosts Steve Paikin and John Michael McGrath discuss the ripple effects that the coronavirus is having on patients in the health-care system. Also, Garima Talwar Kapoor, director of policy and research at the Maytree Foundation, joins the podcast to discuss the province’s decision to deduct the Canada Emergency Response Benefit from social-assistance income.
 
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‘We have been booted into the 21st century’: What COVID-19 could mean for Ontario’s strained and outdated courts

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The Impacts Of COVID-19 On The Personal Injury Law Firm Landscape

The COVID-19 pandemic has had far reaching impacts on virtually all areas of life. All businesses, including Personal Injury law firms and rehabilitation companies, are working feverishly to adapt to this new normal. 
 
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Virtual care is booming amid COVID-19

Like any function of society still able to continue under lockdown, doctor’s appointments have moved online. Canada has had some form of virtual care for a while now, but the use of phone and video to deliver medical care and advice has skyrocketed out of necessity. 
 
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Assistive Devices Program has Resumed Processing Applications

Communication from the Assistive Devices Program (ADP) on April 29, 2020 confirms  that in response to the evolving situation regarding the COVID-19 pandemic, the ADP will temporarily accept applications for ADP-funded devices via fax and for ADP grants via email.  Applications must not be mailed to the ADP office.  Applications that were previously received by mail are being processed and must not be resubmitted. 
 
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CERB ‘a slap in the face’ for Ontarians scraping by on disability payments

Some Ontarians who rely on provincial disability support say the federal government’s new emergency benefit for people affected by COVID-19 is laying bare a double standard when it comes to the question of what’s considered a livable income. 
 
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3 Ways The COVID-19 Pandemic Could Change Disability Policies And Practices

How will our world change after the pandemic? Will go completely back to normal and try to forget all of this ever happened, the way so many Americans did after the 1918 Influenza pandemic? Will we just change a few habits, policies, and plans to confront future outbreaks? Or, will we go a bit further and make bigger reforms we once thought impossible, but now seem both feasible and wise?

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Applicant vs. RSA Insurance, 2020 CanLII 14485 (ON LAT), <http://canlii.ca/t/j5f9v  

[25]        The AMA Guide[20] defines “permanent impairment” as, an impairment that is unlikely to change substantially and by more than 3% in the next year with or without medication.

[26]        According to the applicant, the definition of “permanent” from the  Merriam-Webster.com website is: continuing or enduring without fundamental or marked change.[21] 

[27]        I agree with the definition from the AMA Guide that a permanent impairment is something that is unlikely to change substantially or by more than 3 per cent.  I would add that an impairment can be considered permanent if it will continue without a fundamental or a marked change. 

[28]        I do not view Dr. Farhadi’s conclusion of the applicant’s “potential to improve” to mean that she is likely to improve substantially or by more than 3 per cent in accordance with the AMA Guide or that her condition will have a fundamental or marked change so that she is no longer considered to have a permanent grade on the ASIA Impairment Scale. 

[29]        Dr. Farhadi goes on to suggest that the applicant should be reassessed at the 24 month mark.  I place less weight on the conclusions Dr. Farhadi reaches based on the fact that there is no time requirement to conduct an assessment in paragraph 1 of section 3.1(1) as there are in the other paragraphs of this section.  Furthermore, Dr. Farhadi is attempting to go beyond his role as a medical assessor.  His role is to provide a medical diagnosis of the applicant, not to provide his opinion on the interpretation of the Schedule.  That role falls to this Tribunal for the purpose of assessing whether the applicant sustained a catastrophic impairment.

[30]        If the drafters of the legislation intended for there to be a minimum amount of time before an applicant can be determined to qualify as catastrophically impaired under paragraph 1, they would have used wording to that effect as they did in the other paragraphs of section 3.1(1).  In my opinion, requiring the applicant to wait 24 months for an assessment under paragraph 1 goes beyond the wording and the requirements of that paragraph. 

[31]        Based on the above, I find that Dr. Farhadi’s opinion of the applicant having the “potential to improve” does not mean the applicant’s permanent grade on the ASIA Impairment Scale cannot be determined.  Furthermore, I find that there is no requirement to wait 24 months before conducting an assessment under paragraph 1 of section 3.1(1).

CONCLUSION

[32]        I find that the applicant meets the definition of a catastrophic impairment in accordance with the Schedule.

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Arconti v. Smith, 2020 ONSC 2782 (CanLII), <http://canlii.ca/t/j6wzr  

[19]     In my view, the simplest answer to this issue is, “It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.

[20]     That is not to say that there are not legitimate issues that deserve consideration. Technology is a tool, not an answer. In this case, the parties cannot attend in the same location due to health concerns and governmental orders. So, the question is whether the tool of videoconference ought to be required  to keep this matter moving or if the mini-trial ought to be delayed further due to the plaintiffs’ desire to conduct an examination for discovery in person.

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[23]     Rule 1.08(1) is written very broadly. It allows for the use of remote technology in any step in a motion, application, trial, etc. I have no hesitation finding that an examination for discovery ordered in association with a mini-trial of a summary judgment motion is a step in a motion and a trial.

[24]     Looking at the factors in Rule 1.08(5), the general principle that evidence should be provided in court has never applied to examination for discovery or examination of a witness for a pending motion. Neither is demeanour a factor in this case. The transcript of an examination for discovery of Mr. Fenton can only be used by the plaintiffs. Discovery transcripts are used for admissions not for demeanour.

[25]     I do not dismiss the concern for abuse of the technology by a party who might be so inclined. It would not be difficult, for example, to put a person or another computer screen outside the field of view of the camera that could enable improper prompting of the witness. I suppose with current Bluetooth technology, even where parties are in the same room, a witness can wear a hearing device and readily receive improper prompting. People can also send hand signals to witnesses in court as well.

[26]     While it is important to remain vigilant against the risk of fraud and abuse, I do not believe that we have yet reached a point where we presume it either. This is especially the case where a lawyer is to be examined. While no one is immune from cheating, regulated professionals must maintain professional ethics and have their licenses at risk. Their professional reputations are their lifeblood. While the court remains open to receive evidence of abuse of any examination or other process in a lawsuit, and should deal strongly with any proven abuse, I do not think an amorphous risk of abuse is a good basis to decline to use available technology.

[44]     In my view, the plaintiffs’ concerns with the prospect of conducting an examination remotely do not outweigh the desirability of proceeding with this matter and do not justify further delay. These actions have been outstanding for several years. The defendants are entitled to have their motion heard just as the plaintiffs are entitled to seek compensation. The plaintiffs’ concerns, in the main, are soluble either by creative alternatives or by increased familiarity with the technology. I do not accept that anything will be lost that is not more than offset by the proportionality of proceeding efficiently and affordably.  

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